California law defines murder as the “unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a), italics added; all unlabeled statutory references are to this code.) The issue here is whether a person who kills a nonviable fetus, that is, a fetus incapable of sustained life outside the womb, may be convicted of murder. Ihe lead opinion concludes that the Legislature did not make viability an element of fetal murder, and that the federal Constitution does not prohibit a state from making criminal the unlawful killing of a nonviable fetus. (Lead opn., ante, pp. 809-810.) I agree. I write separately, however, to address some points made by the dissent, and to expand on the lead opinion’s discussion of the United States Supreme Court’s decision in Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147, 93 S.Ct. 705],
According to the dissent, our Legislature intended to restrict the crime of fetal murder to cases in which the fetus was viable. I am persuaded, however, that this was not the Legislature’s intent. The strongest evidence of legislative intent is the language used in the statute. In plain and simple terms, section 187, subdivision (a), states: “Murder is the unlawful killing of. . .a fetus, with malice aforethought.” There is not a single reference in the statute to the term “viability.” Nothing in the scant legislative history of the enactment persuades me that the Legislature intended a viability requirement.
Unlike the dissent, I attach no significance to the Legislature’s failure to rewrite the fetal murder statute in the wake of certain decisions by the Courts of Appeal that have read a viability requirement into the statute. I do not *816share the dissent’s view that the Legislature must have agreed with these decisions, or it would have amended section 187 to eliminate viability as an element of fetal murder. Legislative inaction would signify “legislative acquiescence” only if, by taking action, the Legislature could have undone the rule adopted by the Courts of Appeal. But here the Legislature could not undo the requirement of viability that the first of these decisions read into the fetal murder statute “as a matter of constitutional law.” (People v. Smith (1976) 59 Cal.App.3d 751, 757 [129 Cal.Rptr. 498].) Faced with that appellate authority, the Legislature’s inaction proves nothing more than its recognition that, under California case law, enforcement of section 187, subdivision (a), against someone who had killed a nonviable fetus would be unconstitutional.
When the appellate court in Smith, supra, 59 Cal.App.3d 751, read a constitutional requirement of viability into the fetal murder statute, it did so in mistaken reliance on Roe v. Wade, supra, 410 U.S. 113. It appears that the Court of Appeal confused the issue of state authority to interfere with a woman’s procreative choice with the quite distinct issue of state authority to punish a third party whose violent conduct against the pregnant woman deprives her of that choice. Although in Roe the concept of “fetal viability” was critical to the first of the two issues, it has no application to California’s fetal murder statute, as I shall explain.
In Roe v. Wade, supra, 410 U.S. 113, the high court affirmed the principle that the guarantee of personal privacy embodied in the federal Constitution protected those personal rights—such as intimate decisions of procreation— that “can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’ ” (Id. at pp. 152-153 [35 L.Ed.2d at pp. 176-177].) That federal guarantee of personal privacy, the court stated, was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” (Id. at p. 153 [35 L.Ed.2d at p. 177].) Measured against a woman’s right to choose to terminate her pregnancy, any state interest in protecting the potential life of an unborn fetus would be sufficiently compelling only at the point of fetal viability—that is, when the fetus is “potentially able to live outside the mother’s womb, albeit with artificial aid.” (Id. at pp. 160, 163 [35 L.Ed.2d at pp. 181, 182-193].) Only at that stage may the state interfere with the pregnant woman’s fundamental right to choose to have an abortion. Because “fetal viability” delineates the point at which a state may constitutionally prohibit abortion, that concept was central to the high court’s decision in Roe.
But when, as here, a violent assault on a pregnant woman results in the killing of the fetus she carries, the state’s power to criminalize the act as *817murder does not depend on “fetal viability.”1 Because, unlike the situation in Roe v. Wade, supra, 410 U.S. 113, there is no competing constitutionally protected interest at stake, the state’s decision to criminalize the conduct can be justified even if the state does not have a compelling interest in protecting potential human life. Moreover, when a fetus dies as the result of a criminal assault on a pregnant woman, the state’s interest extends beyond the protection of potential human life. The state has an interest in punishing violent conduct that deprives a pregnant woman of her procreative choice.
For the reasons given above, I join the lead opinion in concluding that, to constitute fetal murder under section 187, subdivision (a), the fetus need not be viable.
The dissent raises an important concern when it points out that the lead opinion’s interpretation of the statute could result in the death penalty for a defendant who lacks any intent to kill but whose conduct while committing a felony inadvertently causes a woman, early in her pregnancy, to miscarry. (Dis. opn., post, p. 838.) This anomalous result is largely attributable to our felony-murder rule. Under that rule, even an accidental killing committed during the perpetration of certain specified felonies is first degree murder. (§ 189.) The dissent’s hypothetical scenario does illustrate, however, that a person who committed one of the specified felonies, and was unaware that a woman present during that felony was pregnant could, by causing the woman to miscarry, be subject to the death penalty. In some such cases a penalty of death, or even life imprisonment without the possibility of parole, may be wholly disproportionate to the particular defendant’s criminal culpability, and thus may violate constitutional proscriptions against cruel and unusual punishment. (U.S. Const., 8th Amend.; Tison v. Arizona (1987) 481 U.S. 137, 157 [95 L.Ed.2d 127, 144, 107 S.Ct. 1676]; Coker v. Georgia (1977) 433 U.S. 584, 592 [53 L.Ed.2d 982, 989, 97 S.Ct 2861]; Cal. Const, art. I, § 17; People v. Dillon (1983) 34 Cal.3d 441, 477 [194 Cal.Rptr. 390, 668 P.2d 697].)
The sentence of life without possibility of parole imposed by the court in this case is not wholly disproportionate to the defendant’s criminal culpability. The defendant shot a young woman in the chest at point blank range while trying to rob her, conduct which is highly likely to result in a fatality. It was only fortuitous that defendant’s conduct did not result in the death of the woman along with the fetus she carried. On these facts, the sentence of life without parole is not cruel and unusual punishment.
*818Even though defendant’s criminal act and its tragic consequences warrant substantial punishment, his conviction for first degree murder and the special circumstances finding must be reversed for the reasons set forth in the lead opinion.
For all of these reasons, I concur in the lead opinion.
Stone (S. J.), J.,* concurred.
When a pregnancy is terminated by a physician or surgeon for medical necessity or at the request or with the consent of the pregnant woman, the criminal prohibition of section 187, subdivision (a), does not apply. (§ 187, subd. (b)(2) & (b)(3).)
Presiding Justice, Court of Appeal, Second District, Division Six, assigned by the Acting Chairperson of the Judicial Council.